When doctors violate the standard of care and their patient is injured, they bear legal responsibility. The same is true for lawyers. However, not all mistakes are of such gravity or consequence that the client may recover. Essentially the injured client must show:
- Existence of professional duty to the person harmed. Usually this means he must have been a client of the attorney.
- Professional negligence (violation of a duty owed to the client);
- Actual damages resulting from the professional negligence.
The most common types of malpractice case involve the missing of deadlines.
Failing to file suit within the time required by law (the statute of limitations) is the most common deadline missed and most common cause of malpractice claims. However, even where a lawyer fails to file suit in timely fashion, so that it is now barred by limitations, recovery on a malpractice claim is not a certainty.
The disappointed client must show "actual damages". In New York that means a "trial within a trial". The client must prove up the underlying case. If the trier of fact (usually a jury) determines that the underlying case was without merit, the plaintiff has failed to show "actual damages" and loses. So the client may be the victim of malpractice, but not have a claim for which recovery can be had.
In New York, another common "deadline" which is missed and gives rise to malpractice claims involves the failure to put an insurance company on notice of a potential insurance claim. New York views notice as a condition of insurance coverage. That means that the insurance company can deny a claim merely because they were not notified of the claim in timely fashion as required under the insurance policy. The carrier need not prove prejudice from the late reporting (something that is required in other states, such as Florida or California, in order for the carrier to prevail on a late notice defense).
Another common source of trouble for New York lawyers is the requirement under the Worker's Compensation Law that the WC carrier agree to any settlement of third party bodily injury claims. If the lawyer fails to get approval, he may settle after obtaining court approval. However, sometimes counsel for the injured claimant and plaintiff does neither. He fails to obtain either the WC carriers assent to the settlement or court approval of the settlement. Such failure will likely cause the WC carrier to permanently suspend all benefits (medical and indemnity) when they learn of the third party settlement. That, obviously, presents actual damages to the claimant/plaintiff and a case of clear malpractice.
Should you wish to contact us regarding a potential legal malpractice claim, please feel free to call or to complete the email contact form. Please note that we only accept such cases where the actual damages are significant.